THEKKUMKATTIL KRISHNAN NAIR Vs. THEKKUMKATTIL DAMODARAN NAIR

JUDGEMENT

(1.) The question referred for our decision is "whether the self-acquisition of a female member of a Marumakkathayam tarwad would, on her death, lapse to the tarwad of which she dies a member, or whether they would descend to her nearest heirs or her tavazhi."

(2.) I have no doubt but that, according to the customary or common law of Malabar, such self-acquisitions descend to her tavazhi. That was the customary law, as I understood it, when I was District Judge of that District for several years before I became a Judge of this Court. That there is abundant evidence to support that view is clear from the order of reference to the Full Bench in the case of Govindan Nair v. Sankaran Nair (1909) I.L.R. 32 M. 351. It is, however, contended before us that the majority of the Full Bench in that case held that the case law of this Court since Kallati Kunju Menon v. Palat Erracha Menon (1864) 2 M.H.C.R. 162 shows that the self-acquisitions of a male lapse to his tarwad, and do not pass by inheritance to his nearest heirs, and that the decision, though it does not in terms apply to the self-acquisitions of females, yet is based on reasoning applicable to both alike, and that we should hold that the self-acquisitions of a female lapse to her tarwad in preference to descending to her tavazhi or heirs.

(3.) I cannot accede to this contention, in the suit out of which the reference arose, there was a question as to the descent of the self-acquisitions of a female, as well as of a male, but the order of reference was limited to the self-acquisitions of a male, and the referring Judges notwithstanding the decision of the Full Bench, decided that the self-acquisitions of the female in that suit descended to her own children and did not lapse to the tarwad. It is, therefore, clear that the learned Judges in that case did not regard the decision of the Full Bench as involving a decision that the self-acquisitions of a female on her death lapse to her tarwad. No case has been quoted to us, nor am I aware of a single case, in which it has been directly ruled that the self-acquisitions of a female pass to her tarwad in preference to her tavazhi. The dictum in the case reported in Ummamga v. Appadorai Patter (1910) I.L.R. 34 M. 387 was, I have no doubt, intended to apply only to the self-acquisitions of males, as is shown by the fact that it purports to state the result of the "decisions," and the decided cases refer only to the self-acquisitions of males.